#### The ESTATE OF Alissa Marie ALLEN, et al., Plaintiffs, v. CUMBERLAND COUNTY, A. Garcia, RN, et al., Defendants.

Civil Action No. 15-6273 (JBS-AMD)

United States District Court, D. New Jersey.

Signed 06/27/2017

Filed 06/28/2017

*113Conrad J. Benedetto, Esq., Danielle Marie Key, Esq., John E. Kusturiss, Jr., Esq., Kimmo Z. Hussain Abbasi, Esq., LAW OFFICES OF CONRAD J. BENEDET-TO, 1814 East Route 70, Suite 350, Cherry Hill, NJ 08003, and Melissa Yvette Hoffman, Esq., LAW OFFICES OF CONRAD J. BENEDETTO, 1405 Chews Landing Road, Suite 21, Laurel Springs, NJ 08021, Attorneys for the Plaintiffs

Daniel Edward Rybeck, Esq., WEIR & PARTNERS, LLP, 215 Fries Mill Road, Second Floor, Turnersville, NJ 08012, and Stephen D. Holtzman, Esq., Jeffrey S. McClain, Esq., HOLTZMAN & MCCLAIN, PC, 524 Maple Avenue, Suite 200, Linwood, NJ 08221, Attorneys for Defendant A. Garcia, RN

OPINION

SIMANDLE, District Judge:

This matter comes before the Court on Defendant Amber Garcia, RN’s motion for partial summary judgment. [Docket Item 42.] On August 18, 2015, Plaintiff Christine Allen, both as the administrator of the estate of Alissa Marie Allen and in her own right, filed a complaint in this Court against several defendants, alleging a variety of claims arising from the unfortunate death of Alissa Allen on March 22, 2015 in the Cumberland County Jail. [Docket Item L]

Defendant Amber Garcia, RN (“Garcia”) argues that Plaintiffs professional negligence claims (including those which could have been brought based on Garcia’s alleged professional negligence must be dismissed with prejudice (or, in the alternative, that Garcia be granted partial summary judgment as to those claims) for Plaintiffs failure to timely obtain and serve an Affidavit of Merit from a qualified affiant as required by N.J.S.A. 2A-.53A-27 through — 29, and that Plaintiff only be permitted to proceed as to Garcia with regard to their claims of violations of federal and state civil rights. [Docket Item 42 at 1-2.] Plaintiff argues in response that no such affidavit is required in this case. [Docket Item 47.]

The principal issue to be determined is whether New Jersey law requires an affidavit of merit to be filed by one pursuing a claim of professional negligence of a nurse *114who allegedly .conducted a deficient psychological examination of an. arrestee, or whether the circumstances fall into the common knowledge exception to the affidavit of merit statute.

• For the reasons discussed below, the Court finds that such an affidavit was required for this professional negligence claim against Nurse Garcia. Accordingly, the Court will grant the relief requested by Defendant Garcia and grant summary judgment to her with regard to Plaintiffs claims of professional negligence.

I. FACTUAL AND PROCEDURAL BACKGROUND

The instant .action arises out of the death of Alissa Marie Allen on March 22, 2015 in the Cumberland County Jail. Her mother, as administrator of- Ms. Allen’s estate and in her own right, is the named plaintiff in this action.

On March 20, 2015; Ms. Allen was arrested by Millville, New Jersey police officers who transported her to and booked her into the Cumberland County Jail in the early morning hours of March 21,2015. [Docket Item 14 at ¶¶ 14-15.] Plaintiff alleges that Garcia, among other jail.personnel “were required to screen Ms. Allen not only for any physical problems, but also to determine if Ms. Allen presented a risk for any psychological problems, including suicide[,]” and “had a legal duty to maintain a safe and suitable environment where Alissa Marie Allen could be kept free from injury, harm and death.” [Id. at ¶¶ 16-17.]

On March 22, 2015, Ms. Allen “was discovered ‘hanging’ in her cell” at the jail; emergency medical personnel responded to a cardiac arrest complaint but, tragically, Ms. Allen was pronounced dead at the scene. Her death certificate identifies hanging as the immediate cause of death. [Id. at ¶¶ 18-21.]

Plaintiff alleges that Garcia, along with other Defendants, “failed to properly screen Alissa Marie Allen for any suicidal tendencies, or any other psychological problems, and also failed to properly monitor Alissa Marie Allen.” [Id. at ¶ 22.]

- Plaintiffs claims in the Amended Complaint filed on February 8, 2016 include common law claims for wrongful death (Count V) and a survival ,action (Count VI). [Id. at 11-13.] .

On February 18, 2016, an- Answer was filed on behalf of numerous Cumberland County defendants, which mistakenly included Garcia. [Docket Item 15.] On March 31, 2016, a stipulation by all parties consenting to the filing of an Amended Answer on behalf of moving defendant Garcia was filed [Docket Item 16] along with a copy the proposed' Amended Answer [Docket Item 17]. The Court subsequently granted leave to file an Amended Answer within 14 days on April 1, 2016. [Docket Item 18.] A Substitution of Attorney with regard to Garcia was prepared and signed by John C. Eástlack, Jr. as withdrawing attorney and Stephen D. Holtzman as superseding attorney and was entered onto the docket on April 27, 2016. [Docket Item 26.] On April 27, 2016, Garcia’s Amended Answer was filed nunc pro tunc to April 1, 2016, [Docket Items 27, 30.]

Garcia’s Amended Answer includes separate defenses for failure to state a claim and failure to file an appropriate Affidavit of Merit (“AOM”) pursuant to N.J.S.A. 2A:53A-26, et seq. [Docket Item 27 at 7, 8.]

Plaintiff did not obtain or serve an AOM on Defendant Garcia on or before June 26, 2016 or before August 25,2016.1

*115II. STANDARD OF REVIEW 2

At summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law; Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is made, the -burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing a motion for summary judgment, the court is required to examine the evidence in light most favorable to the non-moving party, and resolve all reasonable inferences' in that party’s favor. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1546, 143 L.Ed.2d 731 (1999); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Credibility determinations are not appropriate for the court to make at the summary judgment stage. Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n.3 (3d Cir. 1994).

Under Nuveen Mun. Trust v. WithumSmith Brown, P.C., 692 F.3d 283, 303 n.13 (3d Cir. 2012), a failure to file a timely AOM is properly the subject , of “a motion for summary judgment under Rule 56”; although “the.. AOM Statute directs courts to dismiss actions in which a timely affidavit has not been filed for ‘failure to state claim,’ because the affidavit is not a pleading requirement, this language merely provides that the consequences of not filing a timely affidavit-are the same as failing to state a elaim[,]” especially because the court must necessarily consider “matters outside the pleadings” when considering the- applicability of the AOM statute and timely filing of the AOM. '

III. ANALYSIS

Defendant Garcia argues that N.J.S.A. 2A:53A-26 through — 29 (“the AOM Statute” or “the-Statute”) applies to Plaintiffs claims of professional negligence against her. [Docket Item 42-5 at 12.] Plaintiff alleges, m résponse, that an AOM “is not required "in the instant case, as common knowledge makes apparent the merit of Plaintiffs negligence claims against” Garcia, “without the need of expert testimony.” [Docket Item 47 at 7.]

The AOM statute provides:

> In any action for damages for personal injuries [or] wrongful death ... resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant provide each defendant with. an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised in the treatment, practice or work that is the subject of the. complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

*116N.J.S.A. 2A:53A-27. New Jersey courts have held that the “additional period” that may be applied for by a plaintiff to extend the time period for filing the AOM renders a 120-day deadline from the filing of the relevant answer (the original 60 day period, plus an additional sought-and-granted-for-good-cause period not exceeding 60 days) an “end of the line ... drop-dead date,” Douglass v. Obade, 359 N.J.Super. 159, 160, 819 A.2d 445 (App. Div. 2003), or, in other words, “an outer time limit ... beyond which no extension could be granted,” Familia v. Univ. Hosp., 350 N.J.Super. 563, 569, 796 A.2d 302 (App. Div. 2002).

The Third Circuit has required the filing of an AOM in appropriate cases within 120 days of the filing of the relevant answer, Lee v. Thompson, 163 Fed.Appx. 142, 144 (3d Cir. 2006) (internal citations omitted), and has ruled that “the consequences of a failure to file [an AOM] shall be the same as those of a failure to state a claim[,]” Chamberlain v. Giampapa, 210 F.3d 154, 160 (3d Cir. 2000) (internal citations omitted).

However, as Plaintiff states in her Response, “compliance with the [AOM] Statute is excused where ‘common knowledge makes apparent a claim’s merit.’” [Docket Item 47 at 9, citing Kindig v. Gooberman, 149 F.Supp.2d 159, 163 (D.N.J. 2001).] AOMs are “not required in common knowledge cases,” Hubbard v. Reed, 168 N.J. 387, 396, 774 A.2d 495 (2002), where “jurors’ common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of specialized knowledge or experts.” Estate of Chin by Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469, 734 A.2d 778 (1999). “Only in the unusual medical malpractice case will the common knowledge doctrine be invoked.” Id. at 469, 734 A.2d 778 (internal citations omitted). It “is appropriately invoked where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.” Id. (internal citations omitted).

Common knowledge doctrine cases have included those: where a dentist caused a patient’s death by administering anesthesia without asking about the patient’s history of hypertension, Sanzari v. Rosenfeld, 34 N.J. 128, 167 A.2d 625 (1961); where a doctor faded to inform a patient about a needle left in the patient’s body after a medical procedure, Tramutola v. Bortone, 118 N.J.Super 503, 512-13, 288 A.2d 863 (App. Div. 1972); where a doctor applied a caustic liquid in treating a patient after a rhinoplasty, thereby disfiguring her, Becker v. Eisenstodt, 60 N.J.Super. 240, 158 A.2d 706 (App. Div. 1960); where a dentist extracted the wrong tooth, Steinke v. Bell, 32 N.J.Super. 67, 70, 107 A.2d 825 (App. Div. 1954); where a pharmacist gave a customer a Prednisone (a steroid) instead of the prescription of Primidone (an anti-seizure medication) that the customer had presented, Bender v. Walgreen Eastern Co., Inc., 399 N.J.Super. 584, 945 A.2d 120 (App. Div. 2008); and where a medical instrument, incorrectly hooked up, introduced air into a patient’s body and bloodstream, thereby causing a fatal air embolism, Chin, 160 N.J. at 471, 734 A.2d 778.

In Natale v. Camden Cty. Corr. Facility, 318 F.3d 575 (3d Cir. 2003), the court applied the common knowledge doctrine and excused the failure to file an AOM where an inmate at the Camden County Jail alleged medical malpractice when Prison Health Services at the Jail failed to administer insulin to him, a diabetic, during the first twenty-one hours of his incarceration, stating: “While laypersons are unlikely to know how often insulin-dependent diabetics need insulin, common sense — the judgment imparted by human experience — would tell a layperson that medical personnel charged with caring for *117an insulin-dependent diabetic should determine how often the diabetic needs insulin. No special expertise or expert testimony is needed to show, at the outset of a case, that the claim is not frivolous.” Id. at 580.

In Mora v. U.S. Dep’t of Homeland Sec. Immigration and Customs Enforcement, No. 11-3321, 2013 WL 5180041, at *1, *7 (D.N.J. Sept. 13, 2013), the court applied the common knowledge doctrine where a person held in ICE custody complained that, after having been assaulted while in custody and sustaining “serious injuries throughout his entire body,” 2013 WL 5180041 at *1, “he was never treated or-given basic medical care for his injuries,” finding relevant and analogous a precedent holding that “a physician’s failure to diagnose a plaintiffs injuries ... falls within the common knowledge exception.” 2013 WL 5180041 at *7 (citing Bullock v. Ancora Psychiatric Hosp, No. 10-1412, 2011 WL 3651352, at *12 (D.N.J. Aug. 18, 2011)).

In Grimes v. Corr. Med. Servs., No. 08-567, 2010 WL 503031, at *4 (D.N.J. Feb. 8, 2010), the court ruled that a group of inmates’ claims of medical malpractice against the jail’s medical services provider fell “within the common knowledge exception” because each plaintiff alleged “that the defendants failed to provide them with their prescribed medication in a timely manner[,j” citing other precedents where courts found that the common knowledge exception applied where defendants failed ■ to timely provide plaintiffs with their prescribed medicines, or failed to follow the medical instructions of the plaintiffs’ treating specialists. See Jackson v. Fauver, 334 F.Supp.2d 697, 743 (D.N.J. 2004); Bryan v. Shah, 351 F.Supp.2d 295, 302 (D.N.J. 2005); and Lopez v. Corr. Med. Servs., No. 04-2155, 2006 WL 1722584, at *4 (D.N.J. June 20, 2006).

However, as Defendant states in her reply [Docket Item 48], the above precedent does not support the contention that failure to evaluate properly Ms. Allen’s- psychiatric or psychological state upon her admission to Cumberland County Jail, as- the Amended Complaint alleges Garcia did, is similarly analogous so as to fall under the common knowledge exception.

The only case which even arguably supports Plaintiffs contention that this situation should fall within the common knowledge doctrine, of which this Court is aware, is Chin. In Chin, the allegation was that a medical device was hooked up improperly: it introduced gas rather than liquid into a patient’s body for the purposes of a diagnostic test. Although the introduction of liquid would have been safe, the introduction of gas in its place led to a fatal air embolism. 160 N.J. at 460, 734 A.2d 778. However, the Coqrt finds Chin distinguishable on its facts because (1) the explanation of in what respect the hook-up of the instrument (a hysteroscope) was improper was apparent to the laypersons on the jury — it introduced gas rather than liquid, and (2) the nature of that impropriety was obviously and clearly connected to the harm suffered by the decedent.

In this case, the sole basis for the allegations of professional negligence against Garcia appears to be that she failed to evaluate Ms. Alen “properly” with respect to her mental health during Ms. Alen’s intake into Cumberland- County Jail, and that Ms. Alen (presumably) hanged herself between one and two days later. This is not the case where Garcia failed to evaluate Ms. Alen at all, or Garcia ignored mentio'n of or reference to suicidal thoughts or ideation, or evaluated only Ms. Alen’s physical status and not her mental health or well-being. Such a claim could, perhaps, fall under the common knowledge exception. But without an elucidation of *118what made Garcia’s' evaluation improper, and without clarity as to how that alleged breach of Garcia’s duty led to the harm complained of, a jury -of laypersons would not be. able, “using ordinary understanding and experience, to determine [Garcia’s] negligence without the, benefit of specialized knowledge or experts.” Chin, at 469, 734 A.2d 778. An expert, of the type specified by the AOM Statute, is precisely what lay finders of fact would need: to describe the standard of nursing care applicable to the evaluation of Ms. Allen under these circumstances, and that there is a reasonable probability that Garcia breached that standard.

Because the Court finds that “jurors, using ordinary understanding and experience and without the assistance of an expert” would not be able to determine whether Garcia was negligent, and because the “thrfeshold of merit” called for by the AOM statute is not “readily apparent from a reading of the [Plaintiffs complaint[,]” Hubbard, at 395, 774 A.2d 495, the Court will decline to apply the common knowledge.

Accordingly, the Court finds that Plaintiff failed to serve and file an AOM within 60 days (or 120 days) from the date of the filing of Garcia’s answer, as she was required to do under New Jersey law; the Court will not excuse such failure. For that reason, summary judgment is granted to Garcia with respect to Plaintiffs claims based on Garcia’s alleged professional negligence. Such claims shall be dismissed with prejudice.

IY. CONCLUSION

For the reasons discussed herein, Defendant’s motion will be granted. The accompanying Order will be entered. '

1

. Defendant asserted this fact in the Statement of Material Facts in support of her Motion for Partial Summary Judgment, [Docket Item 42-4 at ¶¶ 13-16.] Plaintiff failed to respond to Defendant's Statement of Material Facts as required by L, Civ. R, 56.1(a), includ*115ing an admission or denial of this fact. Plaintiff did submit her own supplemental Statement of Material Facts, wherein she did not deny this fact. [Docket Item 47-1.] Accordingly, the Court shall deem this assertion admitted and therefore undisputed.

2

. The Court exercises jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1343(3) and pendent jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C, § 1367.